Specialist Court of Protection Solicitor, Vanessa Santomauro, takes a look at DoLs and asks what is the acid test for deprivation of liberty?
Deprivation of Liberty Safeguards, often abbreviated to DoLS, is a term which has been used increasingly in recent years but what does it mean?
In terms of health care and treatment, if a person has mental capacity, by which we mean the ability to understand, weigh up and retain information in relation to a specific decision at the time it needs to be made and they have the ability to communicate that decision there is no issue.
Difficulties arise when a person is assessed as lacking capacity and they have not made a Lasting Power of Attorney for Health and Welfare, nor has anyone obtained a Personal Welfare Deputyship.
In such cases the care home or hospital would apply for and be granted a DoLs authorisation if there is a possibility that the care or treatment arrangements will deprive the individual of their liberty. Consideration has to be given to the deprivation being in the best interests of the individual lacking mental capacity to protect them from harm and must be a proportionate response as well as considering whether there are alternative, less restrictive care regimes which would not class as a deprivation of liberty.
Some factors will simply be a restriction of liberty but some will be deemed a deprivation. Those matters which would generally indicate a deprivation of liberty are the degree of supervision and control of the individual together with the lack of ability for the person to leave the home or care facility, whether on a temporary or permanent basis. In simple terms:
• Is the person free to leave
• Is the person subject to continuous supervision and control
A number of assessments are undertaken initially and, if granted, a DoLS will be valid for a prescribed period of time of no more than 12 months at a time. It is the deprivation of liberty and the purpose of care or treatment to avoid harm which is covered by the DoLS authorisation rather than authorisation of particular care or treatment. Care and treatment decisions are made with the best interest principles which are described in the Mental Capacity Act 2005.
It is possible to challenge a deprivation of liberty in instances where you believe someone is being unlawfully deprived of their liberty because there is no authorisation in place or where a DoLS authorisation is in place but the requirements for it are not met (for example the person has regained capacity or the deprivation of liberty is not in their best interests).
Whilst we recommend that all individuals make Lasting Powers of Attorney so they can appoint a person or people whom they authorise to assist with decisions in the event of a decline or loss of capacity, we recognise that sometimes life gets in the way of making certain provisions.
Where a person loses capacity and has no Lasting Power of Attorney in place, it is possible to make an application to the court for a Deputyship Order to be authorised to make certain decisions for the individual. We are able to assist with applications for Deputyship Orders to the Court of Protection to either administer the affairs of a person who has lost capacity or to assist with decisions regarding their care and treatment. Whilst the court grants both types of order, it is more reluctant to grant orders in respect of personal welfare unless the individual’s medical condition is complex and there is also a dispute with the medical profession. Key to the court’s decision as to whether an order is to be granted is a good quality application and in depth assessment of capacity report.
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